Responsible and sometimes critical comment on topical legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
Pro Aequitate Dicere

Monday, 30 November 2015

In the near future there may be a vote in the House of Commons on the question of whether to extend bombing to Islamic State targets in Syria. The government has set out its case for doing this - (discussed in the previous post). Political opposition to the extension of bombing is intense with most of the opposing views being focused on its effectiveness and the risks it entails - see, for example, some of the Other Links below and the interview of the Leader of the Opposition on the Andrew Marr programme (Sunday 29th November). In the interview, Mr Corbyn spoke of the dangers of a bombing campaign and he questioned the government's claim that some 70,000 troops would be available to engage ISIL on the ground in Syria. He wanted to see action to cut off supplies to ISIL of arms, oil and money. (Note: UNSCR 2249 refers to the financing of terrorism - see previous post). The Prime Minister made it clear that any motion brought to the House would
explicitly recognise that military action is not the whole answer - (PM statement 26th November).

In 2013, a vote took place on a rather different Syrian question - Chemical Weapons - see previous post. In that post, I wrote:

Thursday, 26 November 2015

The government has presented its case for extending British military action to Syria in its effort, along with other nations, to deal with the threat to international security posed by Islamic State (ISIL). Let's recall that the United Nations Security Council recently referred to this threat as a global and unprecedented threat to international peace and security. The Security Council unanimously passed Resolution 2249 (2015) - previous post and Read the Resolution.

Foreign Affairs Committee Second Report of Session 2015-16 on the Extension of offensive British military operations to Syria published 29th October 2015. The report contains discussion as to the legality of the proposed action (at page 11). The evidence given to the committee by Professor Marc Weller and Mr Dominic Grieve QC MP are both referred to. Their evidence was given in early October and early September respectively - a considerable time before the attacks in Paris (13th November).

Wednesday, 25 November 2015

It is a truism that law and morality do not always march hand in hand.

On 11-12 December 1948, at Batang Kali (in Selangor Province, Malaya), 23 unarmed civilians were killed by British troops. At the time, Malaya was a British Colony. The British government adopted the stance that the men had been killed "trying to escape" and this has been consistently maintained despite evidence emerging over the years that it was far from the truth. The British government also refused to instigate an official inquiry into the matter. This refusal became the subject of a judicial review that began in the Queen's Bench Division (judgment), proceeded to the Court of Appeal (Civil Division) (judgment) and then to the Supreme Court of the UK. The judicial review is confined to the legality of the decision not to instigate an inquiry.

The European Court of Human Rights Grand Chamber is hearing the cases of Ibrahim, Mohammed, Omar, Abdurahman v United Kingdom. The four were convicted of offences in connection with bombs (which failed to explode) on the London Underground on 21st July 2005. In the Court of Appeal (Criminal Division) in 2008 the President of the Queen's Bench Division described the offences as "merciless and extreme" and added that the sentences were
rightly severe and extreme. Beyond doubt, they were utterly justified.

The following is taken from the court's explanation of the cases.

The applicants in the first three applications, Muktar Said Ibrahim, Ramzi Mohammed and Yassin Omar, are Somali nationals who were born in 1978, 1981, and 1981 respectively. The applicant in the fourth application, Ismail Abdurahman, is a British national who was born in Somalia in 1982.

On 7 July 2005 suicide bombers detonated their bombs on the London transport system, killing 52 people and injuring many more. Two weeks later, on 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene but were later arrested.

Saturday, 21 November 2015

Islamic State" (IS) claimed responsibility for the attacks in Paris on Friday 13th November - Reuters 14th November. At the time, the President of France described the attacks as "an act of war."

The United Nations Security Council has now adopted UN Security Council Resolution (UNSCR) 2249 (2015) - Read the Resolution. The resolution calls upon (but does not mandate) those Member States with the capacity to do so to take

Friday, 20 November 2015

The House of Commons Justice Committee has expressed grave misgivings about whether the Criminal Courts Charge is compatible with the principles of justice - READ THE REPORT. The levels of the charge are criticised as grossly disproportionate to the means of many of the offenders to which the charge is applicable as well as to the gravity of many of the offences for which it is imposed. The charge is also thought to be creating perverse incentives affecting defendant and sentencer behaviour.

The committee would not mourn early abolition of the charge and calls for legislation to either remove it or, if the government is not so minded, to reduce the levels of the charge. If it is not either abolished or reduced then the committee calls for legislation to permit discretion for sentencers (a) as to whether to impose the charge and (b) if it is imposed, the level of the charge.

Wednesday, 18 November 2015

Joshua Rozenberg writing in The Guardian 18th November says that - "The law makes it clear that shooting to kill has to be justified......" Mr Rozenberg's article comes in the wake of comments relating to "shoot to kill" made by the Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) - see BBC 17th November

As Rozenberg (rightly) states, shooting with intent to kill can certainly be an option available to the Police or Security Forces if faced with a situation in which a criminal is threatening human life. Whether actually killing someone is lawful will depend on all the circumstances including information given to the Police Officer or soldier who actually fires the gun.

In June, The European Court of Human Rights heard the case of Da Silva.

Tuesday, 17 November 2015

The European Union (EU) has 28 member states. The Treaty on European Union (TEU) requires freedom of movement for workers to be secured within the Union - Art. 45. Limitations on that freedom are permissible on grounds of public policy, public security or public health.

The Schengen Agreement is aimed at removal of border controls but, following the refugee crisis of 2015 and the attacks in Paris on 13th November 2015, this agreement is coming under severe pressure. There are 26 countries in Schengen. 22 are EU members and four non-EU.
Those four are: Iceland and Norway (since 2001), Switzerland (since 2008) and
Liechtenstein (since 2011).

Monday, 16 November 2015

On Friday 13th November, three teams of terrorists laid siege to Paris, killing
129 people in a spree of shootings and explosions across six locations.
The attackers were all outfitted with suicide vests and armed with
Kalashnikovs. "Islamic State" (IS) claimed responsibility for the attacks - Reuters 14th November. The President of France described the attacks as "an act of war." This has been followed by the French authorities hunting for suspects - NBC News 16th November - Paris attacks. - with the French Interior Minister (Bernard Cazeneuve) saying - "The response of France will be total. Those who attack France, we will
catch them and we will be unrelenting with them ... Terrorists will
never destroy the Republic, because the Republic will destroy them."

Saturday, 14 November 2015

The Prime Minister (Rt. Hon. David Cameron MP) reported that a United States of America "drone" attack may well have killed the terrorist Mohammed Emwazi - the Islamic State "executioner" known as Jihadi John - Number 10 Prime Minister's Statement. British involvement is crystal clear from the statement in which Mr Cameron said - "... We have been working, with the United States, literally around the clock
to track him down ... this was a combined effort ... and the contribution of
both our countries was essential."

The Leader of the Opposition (Rt. Hon. Jeremy Corbyn MP) acknowledged that Emwazi had been held to account for his "callous and brutal crimes" but added that capturing the terrorist and holding him to account
in court would have been a better way of revenging his actions, which
have included the beheading of British nationals in Islamic State controlled
parts of Syria and Iraq - The Independent 13th November 2015

At this stage, the argument concerns preliminary issues in the litigation about whether the appellants can be held liable as a matter of law. If the court so holds then it will become a matter for the trial judges to determine the facts and whether there is actual liability. The preliminary issues concern legal concepts of Act of State (both by the Crown and by Foreign States) and State Immunity. This post seeks to offer an overview of the litigation which has already produced several lengthy judgments containing in depth analysis of the legal concepts in issue. Links to the judgments and some other materials are provided.

The Daily Mail (7th November) carried an article about three "rioters" who were arrested and who refused to give their names to the Police. According to the article, they had their fingerprints, DNA and photographs taken and spent 48 hours in custody. They finally got to the Magistrates' Court only for the Bench to let them go on unconditional bail. Read the article. Let us take a look at the relevant law.

A basic principle of English law is that a person is to be considered innocent until proven guilty. This "Golden Thread" applies no matter what the charge and it is for the prosecution to prove guilt.

The three "rioters" were charged with failing to give a name and address when required to do so - Police Reform Act 2002 section 50. It is triable only in the Magistrates' Court and carries a maximum penalty of a fine of £1000 (Level 3). The offence is a NON-imprisonable summary offence. This has implications regarding entitlement to bail.

Saturday, 7 November 2015

The Draft Investigatory Powers Bill has attracted a considerable amount of initial reaction. For details of the Bill and links to the various reports that have influenced the Bill's content see Draft Investigatory Powers Bill (1).

The Homes Secretary (Rt. Hon. Theresa May MP) in her statement to the House of Commons said that powers under the Telecommunications Act 1984 section 94 (Directions in the interests of national security etc) had been used to obtain bulk data. This fact was actually revealed in the Intelligence and Security Committee Report of March 2015 - Privacy and Security: A modern and transparent legal framework. The Committee accepted that this use of the power was acceptable BUT said that the arrangements lacked clarity and transparency and "must be reformed" - (Page 100). The former Deputy Prime Minister (Nick Clegg MP) has indicated that only a "tiny handful" of Ministers knew of the power being used - The Guardian 5th November.

The Bill is a large document (9 Parts and 9 Schedules) and requires some detailed consideration. The first link provided above goes to a document that is 299 pages long. No doubt, in the weeks to come, there will be volumes of comments. Meanwhile, here is some of the background material.

Intelligence and Security Committee Report of Privacy and Security - March 2015:

The Crime
Survey for England and Wales confirms that two thirds of people have confidence in
the fairness of the criminal justice system. Just under half have confidence in its
effectiveness. The Ministry of Justice recently noted, with modest
satisfaction, that these figures had very marginally increased. However, these
metrics also mean that millions of people still don’t have confidence in something
so central to a healthy state.

The Crown Prosecution Servicerecently published
its own survey, finding that half of all victims and more than a third of
witnesses feel unsupported while giving evidence. This should be a grave cause
for wider concern too.

Monday, 2 November 2015

The right to vote in elections is a foundation stone of democracy. The right to vote depends on the registration system and this is undergoing a major change and, over the next few years, a number of crucial elections are scheduled - see Electoral Commission.

Sunday, 1 November 2015

November is here. The change from summer to autumn has taken place without very heavy rain or strong wind and so the autumn colours have been magnificent. Not so splendid is the existing state of our justice system and there are serious concerns about government plans for legislation to address Investigatory Powers and Extremism.

About Me

Peter Hargreaves LL.B (Hons). Live in Greater Manchester but spend as much time as possible in N. Yorkshire. Politically, closest to the Lib Dems than any other! Retired after 40 years in civil aviation. Life long interest in law about which there is much misinformation and misunderstanding. My blog seeks to look at topical items and their complexities and tries to explain things in a straightforward way. Obiter means "by the way" and my posts are "by the way." I hope that the posts are responsible, balanced and informative but it is for you, the reader, to make up your own mind. I do not seek to persuade you. At all times I will try to speak for fairness - Pro Aequitate Dicere.